The primary caretaker and custody orders

When California parents who are going through a divorce are unable to agree about the physical custody of their children, they may file petitions in family courts. It is important to understand that judges tend to prefer the parent who has acted as the child's primary caretaker.

The primary caretaker standard is followed by courts because psychologists have emphasized the developmental importance of children having a close relationship with the parent who has primarily provided their care. Judges may thus want to hear evidence about such things as purchasing clothing, helping children dress, bathing, preparing meals, feeding children, attending school events and extracurricular activities and other parenting duties.

In cases in which both parents have served similar functions, the courts will look to the best interests of the child standard to help them make their decisions. Under this standard, the judge will look to see what the mental and physical health of each parent is, whether there is a history of abuse, whether either parent has problems with drugs or alcohol, what the religious preferences of the child and parents are, and the relationship the child has with both parents as well as with other household members.

Parental rights are fundamental. Unfortunately, far too many parents attempt to keep their estranged spouses from exercising them. Ideally, divorcing parents should recognize that custody disputes are not battles to be one or lost, and that sometimes the "loser" is actually the child. A family law attorney might suggest to a client who has been unable to come to an accord with the other parent that mediation could be a more appropriate mechanism than litigation.

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